United States v. Duran

United States District Court, D. New Mexico

November 8, 2017

UNITED STATES OF AMERICA, Plaintiff,v.PATRICK DURAN, Defendant.

ORDER

M.
CHRISTINA ARMIJO Chief United States District Judge.

THIS
MATTER is before the Court on Defendant Patrick
Duran's Motion to Suppress Statements filed
January 8, 2017. [Doc. 73] The Court has considered the
written submissions of the parties, the record, the evidence
adduced at the evidentiary hearing held on April 6, 2017 and
August 29, 2017, and the pertinent law. The Court, being
otherwise fully advised Grants the Motion
in-part and Denies it in-part.

Background

Defendant
Patrick Duran is charged with one count of abandonment or
abuse of an Indian Child on the Jicarilla Apache Indian
Reservation, causing great bodily harm in violation of NMSA
1978, Section 30-6-1(D)(1); 18 U.S.C. Section 13; and 18
U.S.C. Section 1152. [Doc. 1] Briefly summarized from an
affidavit attached to the criminal complaint, and provided
only to place the Court's discussion in context,
[1] the
factual allegations underlying the charge are the following.

Defendant's
girlfriend was the mother of 8 month old John Doe, (the
alleged victim in this case, hereinafter
“Child”). [Doc. 1 ¶¶ 3, 5-6]
Defendant's girlfriend left Child with Defendant while
she went to the store. [Doc. 1 ¶ 6] When she returned,
Defendant told her that there was something wrong with Child.
[Doc. 1 ¶ 6] Defendant explained to his girlfriend that
Child had been crying when she left, and that he had placed
Child in a crib to let him “cry it out for a
while” but, when he checked on Child, he noticed
“something different” about Child's breathing
and his eyes. [Doc. 1 ¶¶ 6-7] Defendant's
girlfriend checked on Child and found him unresponsive. [Doc.
1 ¶ 7] Child was transported by ambulance to the
hospital. [Doc. 1 ¶ 7] He was vomiting and he had a bite
mark on his arm. [Doc. 1 ¶ 7] At the hospital, an
emergency room doctor discovered what appeared to be bleeding
on Child's brain. [Doc. 1 ¶ 4] These events occurred
on September 28, 2014. [Doc. 1 ¶ 3]

The
next day, September 29, 2014, FBI Special Agent William Hall
and Criminal Investigator Samson Cowboy interviewed Defendant
at the Jicarilla Police Department. [Doc. 1 ¶ 8] During
the interview Defendant stated, among other things, that he
lost his temper because Child was crying, and he picked Child
up “too rough” from a bouncy chair and put him in
a crib. [Doc. 1 ¶ 9] He also stated that when he checked
on Child later, and found Child unresponsive, he bit
Child's arm to elicit a response. [Doc. 1 ¶ 9] Based
on these allegations, among others, Defendant was charged by
criminal complaint, as noted earlier. [Doc. 1]

Presently
at issue is the admissibility of two sets of statements made
by Defendant to FBI agents, Defendant's statement to S.A.
Hall and C.I. Cowboy on September 29, 2014, and another
statement made by Defendant after he was arrested on October
20, 2014. [8/29/17 Tr. 5, 39-40; Doc. 73 p. 3; Doc. 77 p. 2-3
¶¶ 4, 6] Defendant seeks to suppress these
statements on the ground that Defendant did not receive
proper Miranda warnings before speaking with the
agents. [8/29/17 Tr. p. 40] Additionally, he argues that his
September 29, 2014, statements are inadmissible on the ground
that they were not given voluntarily. [Doc. 73 p. 4]

The
Law Pertaining to “Miranda”
Warnings

Pursuant
to the Supreme Court's ruling in Miranda v.
Arizona, 384 U.S. 436, 444 (1966), an accused person
subject to custodial interrogation must be advised of his
right to remain silent and the right to have counsel present
at the interrogation, among other warnings. The accused may
waive these rights, “provided the waiver is made
voluntarily, knowingly and intelligently.” Id.
If the accused “indicates in any manner and at any
stage of the process that he wishes to consult with an
attorney before speaking there can be no questioning.
Likewise, if the individual is alone and indicates in any
manner that he does not wish to be interrogated, the police
may not question him.” Id. at 444-45. Unless
the prosecution demonstrates that it has abided by these
procedural safeguards, any statements stemming from the
custodial interrogation are inadmissible in a criminal
proceeding. Id. at 444.

Miranda
only applies in the context of a custodial
interrogation-meaning “questioning initiated by
law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any
significant way.” Id. at 444. “[P]olice
officers are not required to administer Miranda
warnings to everyone whom they question. Nor is the
requirement of warnings to be imposed simply because the
questioning takes place in the station house, or because the
questioned person is one whom the police suspect.”
Oregon v. Mathiason, 429 U.S. 492, 495 (1977). Thus,
Miranda does not apply to a circumstance in which a
suspect goes voluntarily to the police station, is informed
that he is not under arrest, and, having been interviewed by
the police, is permitted to leave. Id.

The
Law Pertaining to Involuntary Confessions

“The
Government bears the burden of showing, by a preponderance of
the evidence, that a confession is voluntary.”
United States v. Lopez, 437 F.3d 1059, 1063 (10th
Cir. 2006). The question of voluntariness turns on
“whether the confession is the product of an
essentially free and unconstrained choice by its
maker[.]” Id. (alteration omitted). If so, the
confession may be used against him. Id. However, if
the defendant's confession was not freely made, that
is-“if his will has been overborne and his capacity for
self-determination critically impaired, the use of his
confession offends due process” and must be suppressed.
Id. In making a voluntariness determination, the
Court is required to consider “the totality of the
circumstances, considering both the characteristics of the
accused and the details of the interrogation.”
Id.

Our
Tenth Circuit recognizes five factors that are particularly
relevant in this inquiry: “(1) the age, intelligence,
and education of the defendant; (2) the length of detention;
(3) the length and nature of the questioning; (4) whether the
defendant was advised of his constitutional rights; and (5)
whether the defendant was subject to physical
punishment.” Id. at 1063-64. Additionally,
with respect to the details of the interrogation, the Court
should particularly consider whether the government induced a
confession by acts, threats, or promises, that were so
inherently coercive as to cause the defendant's will to
be overborne. United States v. Fountain, 776 F.2d
878, 885 (10th Cir. 1985). In that vein, misrepresentations
of law, such as a promise of leniency in exchange for a
confession, are considered particularly coercive; whereas
misrepresentations of fact, such as an overstatement of the
strength of the government's evidence, are generally
tolerated. Clanton v. Cooper, 129 F.3d 1147, 1158-59
(10th Cir. 1997), overruled on other grounds,
Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007).

Findings
of Fact

From
evidence adduced over the course of a two-day evidentiary
hearing held on April 6, 2017 and August 29, 2017 at which
FBI Special Agent William Hall (S.A. Hall), and FBI Special
Agent Mark Buie (S.A. Buie) were called as witnesses for
Government; and at which Defendant and Doctor Clifford
Morgan, Ph.D were called as witnesses for the defense, the
Court finds the following.

1. S.A.
Hall is an FBI supervisory special agent who has been with
the FBI for 19 years.

2. On
September 29, 2014, upon S.A. Hall's request, a Jicarilla
police officer went to Defendants residence and asked
Defendant whether he was willing to speak with S.A. Hall. The
request was made in person because S.A. Hall did not have
Defendant's phone number. Defendant responded to the
interview request by driving himself to the Jicarilla Police
Department in Dulce, New Mexico.

3. The
Jicarilla Police Department has interrogation rooms and a
conference room. The interrogation rooms have non-rolling
chairs for suspects, an area to handcuff a suspect to a bar,
and no windows; the conference room has dark brown leather
rolling chairs, a long table, a window, and is the part of
the police station in which the chief and his staff meet.
Defendant, S.A. Hall, and Criminal Investigator Samson Cowboy
met in the conference room instead of an interrogation room
and, for approximately twenty minutes, S.A. Hall interviewed
Defendant. The conference room door remained unlocked for the
pendency of the interview.

4.
Defendant was age 26, he appeared to S.A. Hall to be sober,
not injured, and to have no difficulty speaking,
communicating, or understanding.

5. The
interview was tape recorded. Having listened to the tape
recording, the Court finds that, in speaking with Defendant,
S.A. Hall spoke in a calm tone of voice, and was not
aggressive.

6.
After S.A. Hall asked Defendant some preliminary questions
(for example, date of birth and address), S.A. Hall said to
Defendant, “When we're done, you're going to
walk out the door.” He also told Defendant
“you're not under arrest”; and “Since
you come over on your own power, you're sitting over
there, and you can just-you know, you can basically get up
and walk out.” [Gov. Ex. 1 p. 3-4] Defendant understood
these comments to mean that he could leave the conference
room at any time.

7.
Defendant responded by saying, “Well, I have nothing to
hide, ” whereupon, S.A. Hall began to discuss, and ask
Defendant questions about, the circumstances of the previous
day that led to Child's injury. [Gov. Ex. 1 p. 4-6]

8. In
this interview, Defendant stated, among other things, that he
had “picked [Child] up . . . too damn rough”; and
that he had bitten Child when Child “wasn't
responding.” [Gov. Ex. 1 p. 13-14, 16]

9.
Throughout course of the interview, S.A. Hall and C.I. Cowboy
(who remained in the room, but did not interact with
Defendant directly) were polite and professional toward
Defendant; they did not threaten him, promise him leniency in
exchange for a confession, physically punish him, or
otherwise act overbearingly.

10.
After the interview, Defendant left the Jicarilla Police
Department.

11.
S.A. Buie is a supervisor for the Santa Fe resident agency of
the FBI who has ...

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